Boerne enters court fight over water management

Published 12:00 am, Thursday, July 15, 2010

The city of Boerne has decided to support the Guadalupe-Blanco River Authority in a court fight that pits Hill Country water agencies against environmentalists and downstream water users.

The Aransas Project, a coastal environmental group, filed a lawsuit in federal court in March against the state. The plaintiffs say mismanagement of water in the 10-county Guadalupe River basin is adversely affecting the population of whooping cranes, an endangered species.

Boerne's future water supply could be impacted if the plaintiffs in the lawsuit prevail, court documents show.

On March 11, The Aransas Project filed the suit in U.S. District Court for the Southern District of Texas against the Texas Commission on Environmental Quality, asserting that excessive salinity in San Antonio Bay caused adverse conditions for the food supply of the endangered whooping crane, which winters at the bay.

The Guadalupe River's course extends from Kerrville through north Kendall County, New Braunfels, Seguin and Victoria before reaching San Antonio Bay.

The cranes, called the Aransas-Wood Buffalo flock, were said to number 270 in the spring of 2008, but 57 deaths occurred in 2008-09, according to news reports in coastal publications. That number includes 23 deaths while the birds were wintering in Texas.

According to the lawsuit, “Last winter in Texas, 23 birds died, representing a loss of 8.5 percent of the wintering flock. These deaths directly reflect the lack of sufficient fresh water flowing to San Antonio-Aransas Bay system. The cranes need fresh water to drink, and to support two essential food sources – the wolfberry and, perhaps most importantly, for protein, the blue crab. Some cranes literally face winter starvation, including the young whose own parents will push them away from feeding areas in a desperate effort to save their own lives.”

The lawsuit goes on to state: “Indeed, with increasing water use in the Guadalupe basin, the cranes face an existential threat – lack of freshwater could mean, literally, that they face extinction. Federal law forbids any such “take”, actual or threatened, even if Defendants did not intend or even did not want their actions to cause harm.”

Although the original suit was against the Texas commission that oversees environmental matters, on April 23 the court approved GBRA's “Motion to Intervene as a Defendant.”

The GBRA general manager, W.E. “Bill” West Jr. outlined the implications in a letter to the GBRA membership in the spring edition of “GBRA River Run.”

“The Aransas Project is attempting to turn upside down the entire system of water rights allocation in the state of Texas and have the federal government take it over.…If successful, TAP's lawsuit would mean the stripping of water from municipal, agricultural, and industrial water right holders along the Guadalupe and San Antonio river basins and reassigning it to the causes requested by TAP,” West wrote.

Mick McKamie, attorney for the city of Boerne, said the city has filed a Friend of the Court brief.

“City Council voted to support the GBRA position at the trial court level in front of Judge (Janis Graham) Jack, and so we communicated with the general counsel for the GBRA and filed the city's support of their position,” McKamie said.

According to McKamie, the council decision to support GBRA was unanimous.

“City Council felt like the GBRA position had merit and it would be beneficial to everyone in our region, including the city, for the GRBA position to prevail in the case, and felt strongly enough to have us tell the court that,” McKamie said.

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“We've already filed the documents to do that;…we haven't presented additional briefing yet. If the opportunity arises and the court expresses interest, we're prepared to do that.”

To read the suit, visit the Aransas Project website: www.aransasproject.org. Click on “View the Complaint” on the home page.